COVID-19 Contact Tracing and Privacy Rights in Ghana: A Critical Analysis of the Establishment of Emergency Communications System Instrument, 2020 (EI 63)

Delali A Gawu,Richard Obeng Mensah

doi:10.1017/s0021855321000425

Delali A Gawu, Richard Obeng Mensah

Open Access

https://doi.org/10.1017/s0021855321000425

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Abstract

AbstractIn December 2019, the world woke up to the news of a novel coronavirus (COVID-19). Since then, governments across the globe have deployed various measures to contain the spread of the disease. The government of Ghana, among other measures, issued the Establishment of Emergency Communications System Instrument, 2020 (EI 63) to establish an emergency communications system to aid contact tracing during public health emergencies. This executive instrument has been criticized for illegally “legalizing” the breach of the privacy rights of electronic communications network subscribers in Ghana. This article critically analyses EI 63 in relation to the right to privacy of communication enshrined in Ghana's 1992 Constitution. It argues against the constitutionality of EI 63, calls for its revocation and replacement with an act of Parliament enacted with due regard for Ghana's legislative framework on the protection of the right to privacy of communication.

Highlights

In December 2019, the world was hit by news of a novel coronavirus disease (COVID-19) that broke out in Wuhan, China.[1]
It has been established that EI 63 violates privacy rights enshrined under article 18(2) of the Constitution and cannot be supported under its intended parent act, the Electronic Communications Act 2008
This article recommends that EI 63 be revoked or, at the very least, amended in compliance with the court orders in Francis Kwarteng Arthur v Ghana Telecom.[75]

Summary

INTRODUCTION

In December 2019, the world was hit by news of a novel coronavirus disease (COVID-19) that broke out in Wuhan, China.[1]. A public health emergency cannot be encompassed by national security, within the meaning of section 100 of the ECA This is because, reading the ECA as a whole, one discovers that, throughout the act, the power of the president to request and obtain access to communication transmitted over electronic communication networks is linked to a state of emergency,[59] for the purposes of national security[60] or the enforcement of law.[61] Had the legislature intended a broader interpretation of these words and phrases, it would have been evident in the way they were used in the ECA and in the Constitution. Provisions regarding a state of emergency are contained in the Emergency Powers Act, 1994 (Act 472)

63 See ME Addadzi-Koom “Quasi-state of emergency

65 HK Prempeh “Executive powers and domestic responses to coronavirus pandemic

CONCLUSION AND RECOMMENDATIONS